BGH: Copyright infringement even if authorship is denied only against the author himself

The Federal Court of Justice (BGH) has made an important clarification on the scope of protection of the right of recognition under copyright law in a groundbreaking ruling dated 27.06.2024 (Ref. I ZR 102/23). The decision significantly strengthens the position of authors and has far-reaching implications for the handling of copyright disputes. In essence, the question is whether the author’s right to recognition of his authorship enshrined in Section 13 sentence 1 UrhG is also infringed if the denial or presumption of authorship is only made against the author himself. The BGH now expressly affirms this and thus contradicts the previous case law of the lower courts. This decision is one of a series of rulings that have strengthened the moral rights of authors in recent years.

Background to the case and lower courts

The case on which the BGH ruling was based concerned a dispute between an author and an editor over the authorship of a book. The author had negotiated with the editor about the editing of his new book, which he self-published a year later under the title “Der verratene Himmel”. Six years after publication, the editor wrote to the author claiming authorship of the book and asking him to stop referring to himself as the author of the work. After an unsuccessful warning, the author sued for injunctive relief against third parties. Both the Regional Court and the Higher Regional Court dismissed the action. The Higher Regional Court based its decision on the fact that a violation of the right to recognition of authorship pursuant to Section 13 UrhG requires that the denial or claim of authorship is not only made inter partes vis-à-vis the author, but that the statement is disseminated and thereby made public or at least that there is a risk of such dissemination occurring for the first time.

BGH: No restriction of § 13 UrhG

The BGH did not follow this restrictive interpretation of Section 13 UrhG. In its reasoning, the court emphasized that neither the wording nor the meaning and purpose of Section 13 UrhG justify such a restrictive interpretation of the right of recognition. The BGH clarified that the moral right of the author represents a comprehensive right of defense against any form of denial and presumption of authorship. This applies irrespective of whether the disputing or presumptuous statement is made only to the author himself or also to third parties. The court also emphasized that the right of recognition under copyright law – similar to the protection of honour against insults under personality law – is also guaranteed in the two-person relationship between the person making the statement and the legal entity concerned.

Significance and impact of the decision

The decision of the BGH is significant in several respects and has far-reaching consequences for practice. It considerably strengthens the position of authors by extending the scope of protection of Section 13 UrhG. Statements made in a two-person relationship between the author and the disputing party can now also constitute an infringement. This underlines the importance of the right of recognition as a central element of moral rights. In practice, this means that greater caution will be required in future, even in internal disputes about authorship. The decision is one of a series of rulings that have strengthened the moral rights of authors in recent years. For example, the Federal Court of Justice emphasized the importance of moral rights in the context of sampling in its ruling “Metall auf Metall III” (case no. I ZR 115/16).

Conclusion and outlook

The ruling of the BGH represents an important step towards strengthening the rights of authors and will have a lasting impact on the legal landscape in the area of copyright law. It underlines the importance of moral rights and their comprehensive nature. At the same time, the decision raises new questions, such as the distinction between justified criticism and inadmissible denial of authorship. It remains to be seen how case law will treat these borderline cases in the future. For authors, the ruling strengthens their position, while potential deniers of authorship must now also expect legal consequences for non-public statements. In practice, this should lead to increased sensitivity in dealing with copyright issues. Overall, the decision is part of a series of rulings that underline the importance of moral rights in the digital era and continuously expand their scope of protection.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.